The Importance of a Health Care Surrogate

A client recently came to see me because her husband’s son from a previous marriage had himself appointed his father’s emergency temporary guardian. This was done with no notice to her, as allowed by Florida law. I recently received a distraught call from her because her husband was in the hospital, and she had just heard that her husband’s doctors would not discuss his condition with her. The Order appointing her stepson as emergency temporary guardian (ETG) gave him the right to make all health care decisions for his father and he had instructed them not to discuss her husband’s care with her. Just to make matters worse, the son who is now calling the shots had been estranged from his father.

The guardianship laws require that the judge shall determine whether the ward, prior to incapacity, has executed any valid” advance directive naming a health care surrogate. If an advance directive exists, then the judge is required to “specify in its order and letters of guardianship what authority, if any, the guardian shall exercise over the surrogate.” Generally, the judge will provide that the guardian shall have no authority over the health care surrogate pending further order of the court. See, Fla. Stat. sec. 744.3115 

It is unclear whether the client has a health care surrogate directive from her husband. If she has one, then we could probably get the judge to modify his previous order appointing the ETG. The judge could not modify or revoke her authority as the health care surrogate without finding grounds under Florida Statute section 765.105. Therefore, in all likelihood, she would have the right to make the health care decisions and to discuss her husband’s care with his doctors.

If there is no directive naming her as her husband’s health care surrogate, then the client may not gain back control of her husband’s health care. However, at a minimum, the judge will probably require that she be kept informed of her husband’s care and treatment.

This situation highlights the importance of proper estate planning, including a directive naming a health care surrogate.


Why Guardianship Avoidance Tools Don’t Always Work

I had some clients come in recently in need of a guardianship for a family member.  The family member was a retired professional.  He had all the right tools in place to avoid a guardianship — durable power of attorney, health care surrogate, and revocable living trust.  So why did he need a guardianship?  Because he was suffering from dementia and refused to cooperate with his family in making rational decisions that were in his own best interests.  Unfortunately, it seems to me that dementia often magnifies the worst personality aspects of some people.  When you combine a cantankerous, domineering personality with paranoia and delusion, it makes for a difficult situation.

A durable power of attorney lets you manage the person’s property, but not the person.  Sometimes I hear people say, “I’ve got power of attorney over my Aunt Ethel.”  No they don’t.  They have a power of attorney that allows them to deal with Aunt Ethel’s property.  A revocable living trust also allows the management of property but not of a person.  In the narrow area of health care and treatment decisions, a health care surrogate or medical power of attorney does give some control over the person assuming that third parties agree and cooperate.  Therein lies the rub.  Without an adjudication of incapacity, third parties my be reluctant to accept the authority of the attorney-in-fact or surrogate.  This is especially true if the incapacitated person insists that he or she is not incapacitated.  The presumption is that people are competent unless declared incompetent.

Sometimes the alleged incapacitated person has lucid moments or is able to “fake it” for significant periods of time.  This makes third parties even more leery of accepting instructions solely from the attorney-in-fact or surrogate.  Third parties who do not spend a lot of time with the incapacitated person are the most easily deceived.  Thus, you can plan and have all the right tools and still not avoid a guardianship.  The good news is that although you may not avoid a guardianship of the person, you may still avoid a guardianship of the property if you have a properly funded living trust in place.

What If You Don’t Have A Living Will?

What if you don’t have a living will? The State of Florida has an answer for that too. As estate planning lawyers like to say: “If you fail to plan, then the State has a plan for you, which you may not like.”

Florida Statute section 765.401 provides a list of persons who can act for you in order of priority if you are incompetent and have not executed an advance directive of if the designated surrogates are no longer available. There are eight classes of people listed starting with a judicially appointed guardian or guardian advocate. The next person in the list is a spouse, then an adult child or the majority of adult children reasonable available for consultation, and so on. The last person listed is a licensed clinical social worker.

The proxy is required to do what the patient would have done under the circumstances or, if they don’t know what the patient would have done, then they must consider the patient’s best interests. The proxy’s decision must be based on clear and convincing evidence of what the patient would have done or the patient’s best interest. The proxy must comply with Florida Statute section 765.305 which requires that a surrogate be satisfied that there is no reasonable probability that the patient will recover capacity so that he or she can exercise his or her own rights. And the surrogate must be satisfied that the patient is in an end-stage condition, persistent vegetative state, or terminal condition.

Florida Statute section 765.404 deals specifically with persons in a persistent vegetative state who have no advance directive, no evidence of what they would have wanted, and no one to act as their proxy. In such a case, a judicially appointed guardian must consult with a medical ethics committee to determine the patient’s best interests. Persons performing their duties under this section are immune from liability.

Even if your designated surrogates and alternates should become unavailable for any reason, a properly executed living will insures that your wishes are known to those who must make decisions for you when you are incapacitated and cannot do so yourself. In each case, a proxy or surrogate is charged with divining what you would have done, and a living will makes what you would have done obvious.

Copyright Notice:  All Rights Reserved Harry Thomas Hackney, P.A. 2008